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The Director's Guidance On Youth Conditional Cautions

Guidance to Police Officers and Crown Prosecutors Issued by the Director of Public Prosecutions under S37A of the Police and Criminal Evidence Act 1984

3rd Edition: January 2015

  1. Introduction
  2. Authorised persons
  3. Offences for which a Youth Conditional Caution may be offered
  4. Summary only and either way cases
  5. Indictable only to be referred to Prosecutors
  6. Identification of cases in which a Conditional Caution is permissible
  7. Making prompt decisions
  8. Prosecutor’s post charge review – cases that should have been considered for a Youth Conditional Caution
  9. Deciding whether a Youth Conditional Caution is a suitable response – Requirement for sufficient evidence to charge the offender
  10. Deciding whether a Conditional Caution is a suitable response – Assessing the Public Interest
  11. Assessing Seriousness
  12. Considering the totality of offending and history of offending
  13. Circumstances where a Youth Conditional Caution may be appropriate for a indictable only or serious either way offence
  14. The decision to offer a Youth Conditional Caution
  15. Practical arrangements for the referral of cases
  16. Commencement

Annex A: Guidance for the selection of appropriate conditions

Annex B: Financial penalty conditions banding

Annex C: Authority to give a youth conditional caution

Annex D: MG14 document

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1. Introduction

1.1. In determining whether to offer a Youth Conditional Caution in any case authorised persons and relevant Prosecutors must follow the Code of Practice for Youth Conditional Cautions 2013 (http://www.justice.gov.uk/youth-justice/courts-and-orders/disposals/youth-conditional-caution) and comply with this Guidance.

1.2. This Guidance assists Authorised Persons and Relevant Prosecutors (the decision makers) to apply the Code of Practice on Youth Conditional Cautions in deciding how an offender should be dealt with when it is determined that:

  • there is sufficient evidence to charge a youth offender with an offence; and
  • the public interest in the case may be met by a Youth Conditional Caution with suitable conditions providing reparation to the victim or community; which may modify offending behaviour; provide an appropriate penalty; and
  • in all the circumstances of the case, and following consultation with the Youth Offending Team, a Youth Conditional Caution appears appropriate.

1.3. This Guidance specifies:

  • the offences and circumstances when a Youth Conditional Caution may be considered and whether the decision to offer one may be made by a police officer or is to be referred to a Prosecutor.
  • the practical arrangements for recording decisions in cases, making referrals to Prosecutors and for dealing with non-compliance with any conditions.

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2. Authorised persons

2.1. An authorised person (for the purpose of administering a Youth Conditional Caution) should, unless exceptional circumstances exist, be given by either an officer of the rank of sergeant or higher or a suitably qualified police officer (such as the police officer seconded to the Youth Offending Team) or any other person specifically authorised to do so by the Director of Public Prosecutions.

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3. Offences for which a Youth Conditional Caution may be offered

3.1 A Youth Conditional Caution may be considered in any case in the circumstances set out below.

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4. Summary only and either way cases

4.1 An authorised person may offer a Youth Conditional Caution for any offence which in the case of an adult would be classified as a summary only or either way offence, however if the offence is one classified as a hate crime or domestic violence a Conditional Caution may only be offered where the offence scores 3 or less on the ACPO gravity matrix. For offences scoring 4 on the ACPO gravity matrix (but not Hate Crime or Domestic Violence) a Youth Conditional Caution may only be offered in the circumstances as set out below. The decision that exceptional circumstances exist in any case may only be made by a police officer not below the rank of Inspector.

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5. Indictable only to be referred to Prosecutors

5.1. As these are the most serious offences they may attract custodial sentences on conviction. The maintenance of public confidence in the Justice System will ordinarily require such cases to be dealt with at court. Any case triable only on indictment in the case of an adult that is considered by the police as suitable for a Youth Conditional Caution must be referred to a Prosecutor.

5.2. Only in the most exceptional circumstances will a Youth Conditional Caution be an appropriate way of dealing with such a case. The decision to authorise a Youth Conditional Caution in any Indictable Only case must be approved by a Deputy Chief Crown Prosecutor.

5.3. Before considering referring any indictable only offence to a Prosecutor, authorised persons must first determine that exceptional circumstances as set out below are present in the case.

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6. Identification of cases in which a Conditional Caution is permissible

6.1. Police and Prosecutors should ensure that a Youth Conditional Caution is considered in any case for which it is permitted and provides an appropriate outcome for the victim, community and offender.

6.2. Where a Youth Conditional Caution with suitable conditions may provide reparation to the victim or community; be effective in modifying offending behaviour; or provide an appropriate penalty, the offender should not be charged unless it is determined that the case is too serious for a Conditional Caution to be appropriate.

6.3. Guidance for the selection of appropriate conditions is set out at Annex A .

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7. Making prompt decisions

7.1. Wherever possible, the decision to administer a Youth Conditional Caution should be made as early as possible, and while the offender is still in custody. If, for any reason, this is not possible, the offender may be released on bail, with or without conditions (under section 37(7) PACE) for a short period unless there are operational reasons or other circumstances relating to the victim or offender justifying a longer period, or where further information is required relating to the consideration of any specific condition (for example, to conduct a risk assessment or to identify a suitable intervention or rehabilitation programme).

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8. Prosecutor’s post charge review – cases that should have been considered for a Youth Conditional Caution

8.1. Where an offender is charged with an offence, but it appears upon review by a Prosecutor that a Youth Conditional Caution is more appropriate, the reviewing Prosecutor should consult the Youth Offending Team and if it is still considered appropriate should direct an authorised person to offer a Youth Conditional Caution. This includes any case where authorised persons ordinarily make that decision. The current prosecution should be adjourned whilst this action is taken. The authorised person shall then offer a youth caution with conditions as specified by the Prosecutor. If it proves then not to be possible to administer the Youth Conditional Caution an alternative out of court disposal may not be offered and the prosecution must continue.

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9. Deciding whether a Youth Conditional Caution is a suitable response – Requirement for sufficient evidence to charge the offender

9.1. Before a Youth Conditional Caution can be considered, there must be sufficient evidence available to provide a realistic prospect of conviction in accordance with the Full Code Test set out in the Code for Crown Prosecutors.

9.2. In making this assessment, an authorised person may offer a Conditional Caution where:

  • the suspect has made a clear and reliable admission to the offence and has said nothing that could be used as a defence, or
  • the suspect has made no admission but has not denied the offence or otherwise indicated it will be contested and the commission of the offence and the identification of the offender can be established by reliable evidence or the suspect can be seen clearly committing the offence on a good quality visual recording.

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10. Deciding whether a Conditional Caution is a suitable response – Assessing the Public Interest

10.1. Once the evidential test is met, the decision maker must then be satisfied that the public interest can best be served by the offender complying with suitable conditions aimed at reparation; rehabilitation; or punishment, taking into account the interests of the victim, the community, and/or needs of the offender. They must also be satisfied that a prosecution will continue to be necessary, and could go ahead, should the offer of a Youth Conditional Caution be declined or the offender does not complete the conditions.

10.2. In determining whether a Youth Conditional Caution is appropriate to the circumstances of an offence decision makers must assess the seriousness of the case to ensure that this out of court disposal provides an appropriate and proportionate response to the offending behaviour and meets the justice of the case.

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11. Assessing Seriousness

11.1. An assessment of the seriousness of the offence is the starting point for considering whether a Conditional Caution may be appropriate. In assessing this police decision makers will apply the ACPO Youth Offender Case Disposal Gravity Matrix. The more serious the offence, the less likely a Youth Conditional Caution will be appropriate.

11.2. The seriousness of the offence and the range of penalties likely to be considered must be carefully considered in every case. Cases considered as grave crimes and likely to be dealt with at the Crown Court or likely to be considered for a high level Youth Rehabilitation Order or period of detention should generally proceed to court.

11.3. Indictable only offences must be referred to Prosecutors to determine whether a Youth Conditional Caution is appropriate. A Youth Conditional Caution will only be appropriate for an indictable only offence in the most exceptional circumstances. In considering such cases Prosecutors will assess the factors referred to below and make a review record of the exceptional circumstances found.

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12. Considering the totality of offending and history of offending

12.1. In assessing the seriousness of the offence under consideration and determining whether the case should proceed to court or is suitable for a Youth Conditional Caution the decision maker should also take into account the totality of any current offending and any history of previous convictions, reprimands, warnings, youth cautions and Youth Conditional Cautions, particularly any which are recent or of a similar nature. A record of previous offending does not automatically rule out the possibility of a Youth Conditional Caution especially where there have been no similar offences during the last two years or where it appears that the Conditional Caution is likely to change the pattern of offending behaviour and prevent reoffending. However where a youth has been given two Youth Conditional Cautions and continues to offend, a further Youth Conditional Caution is unlikely to be effective in preventing offending and should not be offered as an alternative to prosecution.

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13. Circumstances where a Youth Conditional Caution may be appropriate for a indictable only or serious either way offence

13.1. The decision to offer a Conditional Caution for an indictable only offence, or serious either way offence (scoring 4 on the ACPO gravity matrix but excluding Hate Crime and Domestic Violence) may only be taken where the decision maker is able to conclude that the public interest does not require the immediate prosecution of the offender and that if it took place a court would not impose a period of imprisonment or high level community order.

13.2. In reaching that conclusion, the decision maker must carefully assess the public interest in the case and the likely sentence informed by the appropriate sentencing guidelines and authorities, particularly the Sentencing Guidelines Council Definitive Guideline: Overarching Principles: Sentencing Youths. The decision maker must also have regard to the ACPO Youth Offender Case Disposal Gravity Factor Matrix. Decision makers are reminded of the restrictions on custodial and high level community orders in youth cases. The decision maker must record (on an MG6) the reason for concluding that exceptional circumstances are met in the case. Authorised persons should only refer indictable only cases to Prosecutors where they are able to clearly specify the exceptional circumstances present in the case in accordance with this Guidance.

13.3. In assessing whether exceptional circumstances exist in a case, the following factors must be taken into account:

  • The extent of culpability and/or harm caused, including the age of the offender;
  • The degree of intention or the foreseeability of any resultant harm;
  • Any significant aggravating factors;
  • Any significant mitigating factors;
  • The lack of any previous convictions or cautions;
  • Any other factors relating the offender or commission of the offence likely to have a significant impact on sentence;
  • The overall justice of the case and whether the circumstances require it to be dealt with in court; and
  • The range of sentences appropriate to the circumstances of the case.

13.4. Any aggravating circumstances, including the methodology employed by the offender (for example, any breach of trust or advantage taken of the vulnerable or young) may all increase the seriousness of the offence to the point where the case should proceed to court.

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14. The decision to offer a Youth Conditional Caution

14.1 The decision makers’ review

14.1.1. A Youth Conditional Caution may be appropriate where the decision maker believes that while the public interest requires a prosecution in the first instance the interests of the victim, community or offender are better served by the offender complying with suitable conditions aimed at reparation, rehabilitation, or punishment.

14.1.2. It must be determined that the Youth Conditional Caution is likely to be effective and should be offered. Where the offender shows genuine remorse, indicates a willingness to be cautioned and comply with the proposed conditions a Youth Conditional Caution may be considered. It will not be appropriate for an offender who fails to accept responsibility at the time the caution is administered.

14.1.3. Where the offender indicates that they do not wish to accept the caution or any of the conditions at that stage, the case will be considered again by the decision maker who will determine whether alternative conditions are appropriate or whether the case should proceed to prosecution. Where it proves not to be possible to give the caution because it is not accepted or reasonable conditions are declined the offender should be charged with the offence. In such circumstances an alternative out of court disposal may not be offered.

14.2 Offering a financial penalty condition

14.2.1. A financial penalty can only be offered in accordance with the scales set out in Annex B of this Guidance but only for those offences contained in an Order made under section 66C of the Crime and Disorder Act 1998.

14.2.2. A financial penalty should only be used where rehabilitative and reparative conditions are not suitable. When deciding the appropriateness and level of a financial penalty, it is the income and savings of the youth and not those of the parent or guardian that should be taken into account. The amount of any financial penalty condition must be set taking into account the means and ability of the offender to pay.

14.2.3. When attaching a financial penalty condition, the amount of the penalty, the designated officer for the local justice area to whom the penalty must be paid, and the address of that officer for payment must be set out in the documentation to be handed to the offender following administration of the caution.

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15. Practical arrangements for the referral of cases

15.1 Consultation with the Youth Offending Service

15.1.1. Before deciding to offer a Youth Conditional Caution the decision maker must consult with the Youth Offending Team to ensure that the youth understands the nature of the proposed caution, is suitable to undertake the required conditions and that they are likely to have a positive impact on offending behaviour. The Youth Offending Team will also ascertain whether the offender accepts responsibility for the offending behaviour and is willing to admit the offence and be cautioned. The Youth Offending Team may also carry out a risk assessment and ascertain the views of the victim and recommend specific conditions for inclusion.

15.2 Referral of cases to Prosecutors

15.2.1. Where an authorised person considers that, exceptionally, an offence classified as indictable only in the case of an adult may be appropriate for a Youth Conditional Caution the case must be referred to a Prosecutor. This will be done by submitting the case to the Head of the Youth Justice Team for the relevant CPS Area. The CPS Area will provide a response within 7 days. If, for any reason, it proves not to be possible to administer the caution the offender should be charged with the offence and may not be offered any other out of court disposal.

15.3 Requirements for an MG5

15.3.1. In any case which is to be referred to a Crown Prosecutor the police will prepare an MG5 report and will attach to it the victim's or loser's witness statement and any other evidential material necessary to establish whether the Full Code Test is met. An MG6 must be provided setting out the views of any victim and (where appropriate), the views of the Youth Offending Team and the Inspector's assessment of the exceptional circumstances considered by the police to be present in the case justifying the offer of a conditional caution.

15.4 Contents of the MG5 Report

15.4.1. The MG5 report should set out the circumstances of the offence, summarising any admissions in interview, providing the details of any victims and any previous convictions or cautions applicable to the offender. An MG6 should set out any views of the victim as to any restorative or reparative conditions and details of any compensation to be considered. The report should set out the proposed conditions to be included and confirm that the offender is willing to admit the offence and be cautioned.

15.5 Police decision making - recording the decision

15.5.1. The authorised person must make a brief record of the reasons why a Youth Conditional Caution was or was not considered appropriate in any case and why any particular conditions were selected. The reasons should specify whether reparative, rehabilitative or punitive objectives were sought to be achieved. This may be recorded on an MG6 or a case review document.

15.5.2. As any refusal to be conditionally cautioned or failure to complete conditions may lead to subsequent prosecution authorised persons should ensure that details of the evidential basis for the decision are recorded including sufficient witnesses' details to enable an appropriate file to be provided to the Prosecutor. This may be done by completion of an MG5 or a case review document. This is particularly important where there was no admission in the presence of an appropriate adult in a PACE compliant interview.

15.6 Authorising the Youth Conditional Caution

15.6.1. Once satisfied that the Youth Conditional Caution and the proposed conditions are an appropriate and proportionate response to the offending behaviour, the decision maker will complete the Authority to give a Youth Conditional Caution which will be retained with the MG5 or case review document. A copy of the Authority to give a Youth Conditional Caution is attached at Annex C .

15.7 Dealing with non-compliance with Conditions

15.7.1. If following administration of the Youth Conditional Caution it becomes clear that the offender is not complying with any conditions the decision maker must determine whether there is any reasonable excuse for that non-compliance and if not what action is to be taken. In determining what action to take at that stage the decision maker may deem the caution as completed, vary conditions or prosecute for the original offence. An alternative form of out of court disposal may not be offered.

15.7.2. Where the original decision to offer the caution was made by an authorised person, the authorised person may make that decision. It is to be noted, however, that where a young person does not comply with the conditions of the Youth Conditional Caution and the subsequent decision is to charge that young person, the charge rests with a police officer of the rank of sergeant or above, irrespective of whether the original decision to issue the Youth Conditional Caution was taken by a dedicated Youth Offending Team PC. Where it is considered that charging is appropriate and the offence is one that cannot be charged by the police the case must be referred to a Prosecutor to decide whether to charge. Where the decision to offer the Youth Conditional Caution was made by a Prosecutor the case must be referred back to a Prosecutor.

15.7.3. Once a decision is made as to how the non-compliance is to be dealt with the police with ensure that the PNC is updated to record that.

15.8 Retention of papers to prosecute following non-compliance

15.8.1. Once a Youth Conditional Caution has been authorised in any case, the MG5 (or any other record of the decision), the Inspector's finding as to any exceptional circumstances, the Authority to give a Youth Conditional Caution and the confirmed MG14 ( see Annex D) will be retained by the police pending completion of the conditions. This material will be used in the event of a prosecution resulting from any non-compliance. Any information concerning the personal details of victims and their views must not be included in any information provided to the offender or their legal representative. In the event of a prosecution for non-compliance the police will only be requested to provide witness statements following a not guilty plea and case management hearing where the issues in dispute in the case have been identified.

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16. Commencement

16.1. This Guidance will come into effect in England and Wales on the 5th January 2015.

Alison Saunders CB
Director Of Public Prosecutions

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